Tapia v. United States

• Decision Date: 16 December 2019
• Docket Number: No. 19-108C,19-108C
• Parties: ZAMANTHA TAPIA, MARA DUNN, JENNIFER WILMOT, JENNIFER CRISOSTOMO, KIMBERLY COLON, MELISSA LARSON, Plaintiffs, v. UNITED STATES, Defendant.
• Court: U.S. Claims Court

ZAMANTHA TAPIA, MARA DUNN, JENNIFER WILMOT,
JENNIFER CRISOSTOMO, KIMBERLY COLON, MELISSA LARSON, Plaintiffs,
v.
UNITED STATES, Defendant.

No. 19-108C

United States Court of Federal Claims

December 16, 2019

Subject Matter Jurisdiction; Motion to Dismiss; Veterans' Benefits.

Jason E. Perry, Law Office of Jason Perry LLC, Wellington, Florida, for plaintiffs. With him was Luke D. Miller, Military Disability Lawyer LLC, Salem, Oregon.

Shari A. Rose, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, D.C., for defendant. With her were Alexis J. Echols, Trial Attorney, Commercial Litigation Branch, Martin F. Hockey, Jr., Deputy Director, Commercial Litigation Branch, Robert E. Kirschman, Jr., Director, Commercial Litigation Branch, and Joseph H. Hunt, Assistant Attorney General, Civil Division.

OPINION

HORN, J.

The above-captioned case was filed by the six named plaintiffs on behalf of themselves and other proposed class members as the "primary family caregivers" of injured veterans. Plaintiffs' complaint seeks compensation for alleged wrongful determinations under the "Program of comprehensive assistance for family caregivers" (hereinafter, the Family Caregivers Program), which is administered by the Veterans Health Administration (VHA) of the United States Department of Veterans Affairs (VA) pursuant to 38 U.S.C. § 1720G (2012). Plaintiffs' complaint also seeks class certification to include other primary family caregivers who have been affected by alleged wrongful determinations by the VA under the Family Caregivers Program. Plaintiffs allege that they and other proposed class members were wrongfully denied the appropriate caregiver assistance for "family caregivers of eligible veterans." Defendant responds by arguing that

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the United States Court of Federal Claims lacks subject matter jurisdiction to hear this case.

FINDINGS OF FACT

The Family Caregivers Program was initially established in 2010 under section 101 of Title I of the Caregivers and Veterans Omnibus Health Services Act of 2010, Pub. L. No. 111-163, 124 Stat. 1130 (May 5, 2010) (the Caregivers Act). The preamble to that Act states that it is "[a]n Act To amend title 38, United States Code, to provide assistance to caregivers of veterans, to improve the provision of health care to veterans, and for other purposes." Id. (capitalization in original). Section 101 of the Caregivers Act is broken into subsections. The Family Caregivers Program, which is the subject of the above-captioned case, is established under subsection (a). The "Program of General Caregiver Support" is established under subsection (b) and is not at issue in this case. Subsections (c) and (d) are titled "Construction" and "Definitions," respectively, and apply to both Programs. A fifth subsection, subsection (e), which included appropriation authorization, was originally enacted by the Caregivers Act, but was subsequently repealed in 2018. All of section 101 of the Caregivers Act is codified at 38 U.S.C. § 1720G, titled "Assistance and support services for caregivers." The Family Caregivers Program is codified in subsection (a) of 38 U.S.C. § 1720G.

The statute at 38 U.S.C. § 1720G(a)(1)(A) authorizes the Family Caregivers Program, stating that "[t]he Secretary shall establish a program of comprehensive assistance for family caregivers of eligible veterans." Id. The statute at 38 U.S.C. § 1720G(a)(1)(B) provides, however, that "[t]he Secretary shall only provide support under the program required by subparagraph (A) to a family caregiver of an eligible veteran if the Secretary determines it is in the best interest of the eligible veteran to do so." Id. (emphasis added).

The statute at 38 U.S.C. § 1720G(a)(2) establishes the requirements to be considered an "eligible veteran" for purposes of the Family Caregivers Program. An "eligible veteran" is "any individual who . . . is a veteran or member of the Armed Forces undergoing medical discharge from the Armed Forces" and who "has a serious injury (including traumatic brain injury, psychological trauma, or other mental disorder) incurred or aggravated in the line of duty in the active military, naval, or air service." Id. § 1720G(a)(2)(B). The Family Caregivers Program also requires that the eligible veteran is

in need of personal care services because of--

(i) an inability to perform one or more activities of daily living;

(ii) a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury;

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(iii) a need for regular or extensive instruction or supervision without which the ability of the veteran to function in daily life would be seriously impaired; or

(iv) such other matters as the Secretary [of Veterans Affairs] considers appropriate.

Id. § 1720G(a)(2)(C).

The statute at 38 U.S.C. § 1720G(a)(3) discusses the type of "assistance" that is to be provided to an approved "family member" who is a "provider of personal care services for an eligible veteran" (hereinafter, family caregiver). See id. § 1720G(d)(2), (a)(3)(A)(i). The Family Caregivers Program provides additional assistance to the family caregiver who is deemed the "primary provider of personal care services for an eligible veteran" (hereinafter, primary family caregiver). Id. § 1720G(a)(3)(A)(ii). A "family member" can include the veteran's parent, spouse, child, step-family member, extended family member, as well as an individual who "lives with the veteran but is not a member of the family of the veteran." Id. § 1720G(d).

The statute at 38 U.S.C. § 1720G(a)(4) describes the application process for the assistance available under the Family Caregivers Program, stating that "[a]n eligible veteran and a family member of the eligible veteran seeking to participate in the program required by paragraph (1) [the Family Caregivers Program] shall jointly submit to the Secretary an application therefor in such form and in such manner as the Secretary considers appropriate." Id.

The statute at 38 U.S.C. § 1720G(a)(5) discusses the evaluations that the Secretary conducts of the eligible veteran and the family member upon their joint application, and states:

(5) For each application submitted jointly by an eligible veteran and family member, the Secretary shall evaluate (in collaboration with the primary care team for the eligible veteran to the maximum extent practicable)--

(A) the eligible veteran--

(i) to identify the personal care services required by the eligible veteran; and

(ii) to determine whether such requirements could be significantly or substantially satisfied through the provision of personal care services from a family member; and

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(B) the family member to determine the amount of instruction, preparation, and training, if any, the family member requires to provide the personal care services required by the eligible veteran--

(i) as a provider of personal care services for the eligible veteran; and

(ii) as the primary provider of personal care services for the eligible veteran.

Id.; see also id. § 1720G(a)(7) (discussing primary family caregivers) (discussed below).

The statute at 38 U.S.C. § 1720G(a)(6)(A) states that the "Secretary shall provide each family member of an eligible veteran who makes a joint application under paragraph (4) the instruction, preparation, and training determined to be required by such family member under paragraph (5)(B)." Id. The statute at 38 U.S.C. § 1720G(a)(6)(B) states that "[u]pon the successful completion by a family member of an eligible veteran of instruction, preparation, and training under subparagraph (A), the Secretary shall approve the family member as a provider of personal care services for the eligible veteran." Id.

The statute at 38 U.S.C. § 1720G(a)(7)(A) states that "[f]or each eligible veteran with at least one family member who is described by subparagraph (B), the Secretary shall designate one family member of such eligible veteran as the primary provider of personal care services for such eligible veteran." Id. The statute at 38 U.S.C. § 1720G(a)(7)(B) further states:

(B) A primary provider of personal care services designated for an eligible veteran under subparagraph (A) shall be selected from among family members of the eligible veteran who--

(i) are approved under paragraph (6) as a provider of personal care services for the eligible veteran;

(ii) elect to provide the personal care services to the eligible veteran that the Secretary determines the eligible veteran requires under paragraph (5)(A)(i);

(iii) have the consent of the eligible veteran to be the primary provider of personal care services for the eligible veteran; and

(iv) are considered by the Secretary as competent to the primary provider of personal care services for the eligible veteran.

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Id. The statute at 38 U.S.C. § 1720G(a)(7)(C) and (D) discusses revocation procedures of designated primary family caregivers, giving the veteran and the Secretary such responsibility. The statute at 38 U.S.C. § 1720G(a)(7)(C) states:

(C) An eligible veteran receiving personal care services from a family member designated as the primary provider of personal care services for the eligible veteran under subparagraph (A) may, in accordance with procedures the Secretary shall establish for such purposes, revoke consent with respect to such family member under subparagraph (B)(iii).

Id. The statute at 38 U.S.C. § 1720G(a)(7)(D) states:

(D) If a family member designated as the primary provider of personal care services for an eligible veteran under subparagraph (A) subsequently fails to meet any requirements set forth in subparagraph (B), the Secretary--

(i) shall immediately revoke the family member's designation under subparagraph (A); and

(ii) may designate, in consultation with the eligible veteran, a new primary provider of personal care services for the eligible veteran under such subparagraph.

Id.

The assistance provided to family caregivers and primary family...